It has been another difficult few weeks for many of us, especially those who find themselves under tier 3 restrictions.
The decision means that there is now little room for doubt that commission and overtime, both guaranteed and non-guaranteed (where it forms part of normal remuneration and where the worker is obliged to work overtime if required) will have to be included in holiday pay. The decision upholds the similar decision of the 2015 case of Bear Scotland and Others v Fulton and Others (reported here), which clarified that overtime can also be included as part of holiday pay calculations.
Mr Lock, who was employed by British Gas as a salesman, received commission for sales on top of his basic pay. When he took periods of annual leave, his holiday pay was calculated on basic pay only. However, when he was on holiday, he could not generate commission and so argued that his holiday pay calculation ought to reflect what he would have earned from commission during his holiday. Not including commission as part of holiday pay calculations meant that Mr Lock received significantly less than his normal pay during his holiday and was a disincentive to take annual leave.
The decision will mean that workers who normally receive commission and are paid less than their normal income during periods of annual leave should receive holiday pay which reflects their normal pay. This will lead to additional expense for employers who need to be aware that a failure to include such payments will open the floodgates to a whole succession of unlawful deductions from wages claims. One consolation for employers will be that, under the Deduction from Wages (Limitation) Regulations 2014 there is now a 2 year limit on the look back period for claims for holiday pay which are made on or after 1 July 2015.
What remains unclear however, is the correct reference period on which a calculation of holiday pay should be based. In Lock, it was ruled that holiday pay must correspond to the workers’ “normal remuneration” and that this was a matter for the national courts to work out by taking an average over a reference period that it “considered to be representative”. Rather unhelpfully, this practicality still remains to be determined but we suggest that generally a 12 week reference period, as applied for overtime, is used in the meantime. Until a further ruling on this issue, it is likely that Tribunals will approach the issue on a case by case basis.
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We have submitted our response to the White Paper Consultation based on the discussion held at the “Planning for the Future - what does this mean for affordable housing” webinar we held on Fri 9 Oct
Anthony Collins Solicitors is pleased to have been ranked as a Band 1 firm once again.
Since March 2020, commercial property owners and occupiers across many sectors, whether housing associations, charities, care providers or local authorities, have been impacted by the rules regulating how they deal with their tenants and their landlords. It seems each week there is a change in policy, regulation or legislation, governing how they must respond.
On 18 September 2020, the High Court gave its decision regarding the Judicial Review of Simply Learning Tutor Agency Ltd & Others v Secretary of State for Business.
A key element of the Bill is the establishment of a duty holder regime and requirement to maintain the ‘golden thread of information’ throughout the life cycle of high-risk residential buildings
We have been working with care homes to update their contracts and advise on the risks of charging the resident a regular “top-up” or additional fee where a resident is funded through NHS CHC
The parliamentary processes are complete and the Restriction of Public Exit Payments Regulations 2020 (“the Regulations”) which cap exit payments in the public sector at £95,000 will be in force from 4 November.
As the UK’s social housing sector recovers from the initial Covid-19 outbreak and lockdown, now is the time to focus on the challenges that may emerge next.
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